P L D 1967, Lahore 151 (PLP)

Hakim Muhammad Sardar Khan for Respondent. The regular second appeal was admitted in limine to hearing by order dated the 29th of January 1960. Under rule 1, Chapter 1‑F, High Court Rules and Orders, Volume V, the appellant was to pay a fee of Rs. 2.00 for each summons to be issued in the case to the respondents. He was under rule 2 liable to pay the process‑fee within a period not exceeding 7 days from the date of the order admitting the appeal. The appellant did not pay the process‑fee within the time and the case was listed in motion for the 7th of April 1960 for disposal according to Order XLI, rule 18 of the Code of Civil Procedure and the appellant was sent a registered letter acknowledgment due on the 2~th of March 1960 intimating him of the said date. Neither the appellant nor his counsel appeared on the 7th of April 1960 and the appeal was dismissed by R. B. Munshi, J., on that date for "non‑prosecution". Mr. Shamim Ahmad Mirza, learned counsel for the appellant applied on the 21st of June 1963 for the restoration of the appeal. He also gave an affidavit stating that he was not aware of the fact that the case had been fixed for the 7th of April 1960. Notice was issued to the respondent. Hakim Muhammad Sardar Khan, learned counsel for the respondent, opposes the application for the restoration.

2. By way of preliminary objection, he contends that the impugned order was passed on the 7th of April 1960 and under Article 168 of the Limitation Act the application for restoration of the appeal dismissed for want of prosecution should have been made within thirty days of the dismissal and that the petitioner had not made any application under section 5 of the Limitation Act for the' condonation of the delay nor was such an application competent. There is no application on the record under section

5. In support of his contention that section 5 does not apply to applications under section 151 of the Code of Civil Procedure, he relies on Bissa Mal v. Kesar Singh (A I R 1920 Lah. 363), where in this case a contention raised by the counsel for the respondent that section 5 was not applicable but there is no finding of the learned Judge as to this contention. I may, however, refer to section 5 of the Act itself which applies only to (i)‑appeals, (ii) applications for review, (iii) applications for leave to appeal and (iv) applications to which it may be made applicable by any enactment or rule for the time being in force. Thus unless a new rule is introduced under section 122 of the Code of Civil Procedure to make section 5 applicable to applications under Order V, rule 20, an application cannot be entertained beyond the time specified under Article

168. I have not been pointed out any rule made by the High Court under section 122 of the Code of Civil Procedure or any other provision of law whereby section 5 may have been made applicable to the applications under Article

168. In Hayat v. Mutalli (A I R 1938 Lah. 35), it was held at page37:‑ `We may also remark in this connection that section 5, Limitation Act, does not come into play in this matter. The applications, 'to which that section is applicable, are clearly set forth in the section itself and unless a new rule is introduced in the Civil Procedure. Code making section 5 applicable to applications made under Order XLI, rule 20 or until their Lordships of the Privy Council change their view, the Courts in India are precluded from impleading as a respondent any person who was a party to the original suit and who has not been impleaded in the appeal, if once the limitation for the appeal has expired." Although the case was in respect of Order XLT, rule 2U, this should be considered equally applicable to the facts of this case for the reason that section 5 of the Limitation Act has not been made applicable to applications under Order IX, rule 9, order IX, rule 13, Order XLI, rule 19. 3, In the present case, however, in my opinion, Article. 168 Iq6al, J is not applicable, Article 168 could be pressed into service if the petitioner had notice of the date which was fixed under rule 5 of Chapter 1‑F, High Court Rules and Orders, Volume V, which reads as:‑ "In the event of process‑fee not being paid and no application as provided in rules (3) and (4) being made, the case will be listed for a date soon after the original date of hearing before a Single Judge or a Division Bench as the case may be, for disposal according to Order 1X, rule 2, or Order XLI, rule 18, Civil Procedure Code, or otherwise, as the Court may order. Previous notice of the date so fixed will be given to the appellant or petitioner by listing the cause as a Motion Cause and where the appellant or petitioner in the case is not represented by counsel, by registered post card also." It is not the case of the respondent that any notice was served on the learned counsel for the petitioner‑appellant. The notice was sent by registered acknowledgment due letter on the 28th of March 1960 to the appellant himself. Such a notice could be sent to the petitioner only if he was not represented by a counsel. Here the petitioner was represented by a counsel and under the said rule the notice should have in fact been sent to the learned counsel. Learned counsel for the petitioner, under the circumstances, when he was not served with a notice could not be aware of the date unless he was informed by the petitioner. He has given an affidavit that he was not aware of the date. I have no reason to doubt the statement of the learned counsel. Again, the notice was sent to the petitioner on the 28th of March 1960, by a registered acknowledgment due letter for' the 7th of April 1960. The time was not sufficient for the service of the notice. Be that as it may the fact, however, remains that the acknowledgment receipt is not on the record to show that any such notice was served on the petitioner. Mr. Shamim Ahmad takes up the position that no notice was served on the petitioner either. 1, therefore, hold that the appeal was dismissed for non prosecution on the 7th of April 1960 when no notice was served on the petitioner which was required under rule 5 of the aforementioned rules. In the absence of any notice to the petitioner, the period of limitation will not start against the petitioner under Article 168 particularly when he was not informed of the dismissal. In Muhammad Swaleh v. United Grain and Fodder Agencies (P L D 1964 S C 97) Mr. Justice Kaikaus, observed: "We would hold therefore that the order passed on the 22nd. April 1560, directing ex parte proceedings was not a valid order. On behalf of the respondents it is contended that even if that order be not valid the application for setting aside the ex parte decree was time‑barred in view of the applicability of Article 164 of the Limitation Act which provides a limitation of one month from ‑the date of the decree when the summons has been served... On behalf of the appellant it is contended that the order of 22nd April 1960, directing ex parte proceedings was entirely without jurisdiction and a nullity and so was the ex pane decree based on this order and the order or the decree does not stand in need of being set aside. The application it is said was not for setting aside the ex parse decree, but for recalling the orders passed which only meant that the orders should be treated as void and the Court should proceed to determine the suit which had not yet been determined in the eye of law." In this case the learned Judge passed the order without notice to the petitioner. The order is clearly coram non-judice Hence a nullity. The question to set aside .the order does not arised because it is only to be treated as one, which does not exist in the eye of law in this view of the matter, the question of limitation does not arise I, therefore, direct that notwithstanding the order of the learned‑ Single Judge dated the 7th of April 1960, the appeal of the petitioner is still pending and we have to proceed afresh in accordance with the provisions contained in rule 3 of Chapter 1‑F, High Court Rules and Orders, Volume V. K. M. A. Petition accepted.